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Frank Island

North Pacific swells crashing on Clayoquot's outer coast.

Crown Decision to Quash Mount Polley Private Prosecution Makes No Sense

February 1st, 2018


February 1st, 2018

How can the worst tailings pond disaster in Canadian history not have legal consequences?

The BC Prosecution Service announced Tuesday that they were taking over and quashing the private prosecution of Mount Polley Mining Corporation over the tailings dam disaster. The charges were laid by Bev Sellars, Grandmother, former Chief of Xat’sull First Nation (Soda Creek), author, and indigenous advocate.

Sellars laid private charges against the company on Aug. 4, 2017 – which was the deadline for provincial charges to be laid.  This kept the door open for the Province to take over the prosecution, although Sellars was prepared to proceed on her own if necessary.

On the same day Sellars laid private charges, August 4th, 2017, BC Premier John Horgan said “[t]o have three years pass without any consequences is disturbing to me personally and, I think, disturbing for all British Columbians.”

The Crown’s press release on their decision to dismiss the case said: “[a]fter conducting its review, the BCPS concluded that the material provided does not meet the charge assessment standard for approval of charges.”

However, in deciding to prosecute, or not, Crown would have had access to public reports regarding the spill, plus all the evidence supplied by Ms. Sellars and her legal team, and all the evidence gathered by the BC Conservation Officer Service over the last three years. “It’s ridiculous to say there wasn’t enough evidence, there was a mountain of evidence,” said Sellars, “and if prosecuting this case isn’t in the public interest I don’t know what is.”

“Apparently that wasn’t enough to prove what we could all see with our eyes,” said Jeh Custerra, campaigner for the Friends of Clayoquot Sound, one of many public groups supporting Sellar’s quest for justice. One of Sellars’ 15 charges was simply that there was a spill, and anyone can watch the video of it online.

Sellars and MiningWatch, which assisted in the laying of the private charges last year, say they are now reviewing their options to see if they can challenge Crown’s decision to quash the case.

They also said they are hoping the federal government will show more vigour in pursuing its case than did the BC Crown prosecutors. Charges under the Fisheries Act can still be made until Aug. 4, 2019.

Patrick Canning, counsel for Bev Sellars, said, “This is a very disappointing decision that does not reflect a commitment to the environment or reconciliation with First Nations. The province had the ability to let Ms. Sellars conduct the prosecution, and that is what should have happened.”

“It is so frustrating that there have still been no fines, penalties or charges against the company responsible for this disaster that impacted our community,” said Sellars, “We will decide soon our next steps. But if our current BC laws do not provide for a prosecution for the biggest mining spill then they are grossly inadequate. John Horgan and the BC NDP have the power to change them, and I hope they do. No one else should have to go through this.”


Bev Sellars, 250-267-6924

Ugo Lapointe, MiningWatch Canada, 514-708-0134

Patrick Canning, lawyer, 778-875-4897

Jeh Custerra, Friends of Clayoquot Sound, 250-725-4218

Further background:

Fines under applicable BC legislation go up to 1 million dollars per count for some of the charges that were laid. In addition, the Environmental Management Act make allowance for orders to recover funds spent by the Province on remedial or preventive action taken as a result of the commision of the offence.

Federal Fisheries Act charges can get as high as 6 million for a first offence, and 12 for second or more.

Charges could have been prosecuted under both federal and provincial legislation at the same time, as has been done in other cases, like R v Syncrude, in Alberta in 2010.

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